Boss sacks woman for getting cancer, court hears
A woman was allegedly sacked by a diamond retailer because she was unable to work for a few weeks after being diagnosed with "aggressive" breast cancer, according to documents filed in the Federal Circuit Court.
Gabi Yitshaki, the owner-operator of Empress Diamonds on Swanston St in Melbourne, allegedly responded callously to the news his sales representative Elizabeth Tapping had just been told she had the deadly illness, according to the statement of claim seen by news.com.au.
When the woman's partner Jeff Woods contacted the employer, his first response was allegedly, "Does that mean she can't work?"
After learning Ms Tapping would require a mastectomy and chemotherapy, Mr Yitshaki called Mr Woods back later that same day.
"I'm going to have to let Liz go," he said, according to the statement of claim.
"I'm running a business and I don't know when she is going to be here and when she is not."
The next day Ms Tapping, who is being represented by employment law firm McDonald Murholme, spoke with her boss about the illness.
"I have been diagnosed with breast cancer. It is aggressive," she said.
She claimed that when she told the jeweller she would need five weeks off for surgery and recovery, Mr Yitshaki said, "I can't keep your job."
Ms Tapping claims she pleaded with her boss to wait until she had more information saying, "I can't help it that I have breast cancer."
According to the documents, he simply replied: "But I run a business."
When she pressed further and suggested he find a temporary replacement, he allegedly said: "I run a business, don't talk to me about it till you have a date."
Ms Tapping contacted the business's accountant seeking clarification over her sick and annual leave balance. She was told she was owed a combined 35 days.
She took this to Mr Yitshaki, saying the leave accrued would cover the recovery from surgery and then she could return for light duties.
"That could be six weeks and then you have to do chemotherapy," he said, according to her claim. "Don't come back."
Ms Tapping asked him to clarify: "What do you mean? Are you giving me the sack?"
"Yes," he allegedly responded.
Ms Tapping told the jeweller the dismissal was illegal and he was required to pay two weeks' severance as well as the accrued holiday and sick leave.
"Your law is your law, my law is my law," Mr Yitshaki told her, according to court documents.
"You are getting nothing. I owe you only your weeks' pay that you have worked up to … you must stay and work out the week because if you leave today, I am not paying you the two days."
According to the claim, when Ms Tapping was filling out her employment separation certificate she asked Mr Yitshaki what he wanted to say was the reason for the sacking.
"Cannot keep position because of breast cancer treatment and cannot hold job after," he allegedly said. "That's the truth."
She is seeking $368,000 in wage compensation and damages associated with the wrongful dismissal under the Fair Work Act.
Ms Tapping wants to be reimbursed for the loss of salary she would have earned for five years' employment as well as compensation for the "pain and suffering" caused by the dismissal.
The owner-operator of Empress Diamonds largely disputes the statement of claim in a defence filed in the Federal Circuit Court, seen by news.com.au.
Mr Yitshaki's legal team at Arnold Bloch Leibler told news.com.au the businessman denies the allegation that Ms Tapping was dismissed at all, let alone on the grounds of her being diagnosed with cancer.
Through the filed defence, Mr Yitshaki, denies nearly all versions of conversations alleged in the statement of claim.
He said Empress Diamonds did not breach the Fair Work Act and never sacked his former employee, claiming he thought he was signing a Centrelink form for the woman's benefit when he signed the employment separation certificate.
The defence said it had made substantial investment in training Ms Tapping and had "wanted to (and still wishes to) retain the applicant's services".
"Any illness that the applicant had, or continues to have, was not and is not a relevant consideration," the defence said.
Mr Yitshaki said the initial call with Mr Woods was related to Ms Tapping needing a few days off to digest the news of the illness, which the owner alleges he said was fine.
He said he never called Ms Tapping back later that afternoon, therefore denying the conversation where Mr Yitshaki was alleged to have said, "I'm going to have to let Liz go."
The businessman also disputes the conversation with Ms Tapping from the statement of claim when he said, "I can't keep your job." He claims he "does not recall" the phone call ever taking place.
The defence offers a far more empathetic version of the conversation between Mr Yitshaki and his former employee in reaction to the need for time off work due to the cancer diagnosis.
"As far as work goes, the earlier you can tell me the better so I can get in a replacement to cover your time away," he alleges he said.
The matter is before the Federal Circuit Court and the hearing is expected to take place later this year.
Originally published as Boss sacks woman for getting cancer: court